WE ARE THINKING ABOUT DIVORCE, CAN I MOVE OUT?

“My wife wants me to move out.”

I hear this sentence frequently. Often times the spouse saying it also wants to move out but has heard through various friends and relatives that he shouldn’t. Other times the speaker wants to work on the marriage and is in agony over the idea of separating. This post addresses the former situation. I will address the later in next week’s post.

Historically (at least in New York), lawyers have been reluctant to “allow” their clients to move out of the marital home before the granting of the judgment of divorce. Why? One reason stems from New York’s slow acceptance of no-fault divorce and the other has to do with negotiation strategy.

Until recently New York was a fault state. That meant that there had to be a reason to get divorced other than that the marriage was not working for one person anymore. In a word, you needed to have fault grounds for divorce. Abandonment — leaving the marital home for more than 12 months without the agreement of the other spouse — was (and is) one of those reasons. If one spouse wanted a divorce but did not have grounds for a divorce, that fact had the potential to put pressure on that person to make a “good deal” for the other as the price of freedom.

Statistically speaking it is overwhelmingly likely that any given divorce will be settled before a decision is handed down after a trial. At least 90% of divorce cases (and 95+% in some jurisdictions) of divorces are settled before trial. Given that statistic, it is important to balance out trial strategy against other more practical day-to-day considerations. People often choose to resolve their divorces out of court in order to stay in control of their lives and their living situations. Even high conflict couples want some semblance of sanity as they struggle through the process of divorce. Unfortunately, if there is a possibility that your case will be resolved by a judge (or jury) after a trial, there are some things you may have to watch out for. If you have the possibility of trying your case before a judge, leaving the marital home may have implications for the final resolution of the divorce. It might indicate a lack of interest in living in the marital home. If there are children in the home, it might indicate agreement that primary residential custody will be with the other parent and there may be other implications.

Pressure is the strategic reason to stay in the home. If it is intolerable for one person to live with his or her spouse, tactically, why would you want to relieve that pressure? It may not be great for anyone involved but if you happened to be the person being asked to leave, it may be beneficial to resist until you get a concession from the other. At least that is the traditional negotiation approach.

Is traditional negotiation the best way to handle family disputes? That is a big question and one to which I think the answer is probably not. Maybe that is my bias but my experience is that families are families. Divorce happens but parents continue to be parents. Children continue to be children and life goes on.

Divorce does involve negotiation. Can that negotiation occur in a supportive environment where the needs and concerns of all parties are known and addressed? For most divorcing couples, the answer is probably. If both people are open to the possibility and open to solutions that work for everyone, the chances are very good that such a resolution can be found without resort to traditional pressure tactics.

So, can you move out? It is best to take some time to think through the implications of the separation on all fronts including the costs of the additional household and a parenting plan before any change occurs. It is important to make sure that the financial status quo will be maintained so that everyone feels safe moving forward. These understandings should be put into writing. It is a good idea to enter into the Collaborative Divorce process or a mediation beforehand so that the support to manage any disputes that arise is in place when and if you need it.